Discretion needed for DWI pleas

Thomas F. Liott, Times Union

By Thomas F. Liotti, Commentary

Published 4:27 pm, Wednesday, April 16, 2014

Kerry Kennedy, center, leaves Westchester County courthouse with family members Wednesday, Feb. 26, 2014, in White Plains, N.Y. Kennedy testified at her drugged-driving trial Wednesday that she has no memory of swerving and hitting a tractor-trailer on a suburban New York highway and did not realize she was impaired when she got behind the wheel. (AP Photo/Frank Franklin II) ORG XMIT: NYFF110

The quick acquittal in Kerry Kennedy's DWI case earlier this year points to several flaws in the criminal justice system. Mandatory minimum sentences and rigid plea bargain guidelines, particularly in DWI cases, are mistakes that adversely affect the lives of thousands each year in New York state alone. Similar policies exist throughout the nation.

The policies work by offering first-time offenders in DWI cases so-called plea-bargains, in which they plead guilty to a violation, not a crime, with no jail or probation. They accept a fine and a 90-day suspension of the license. There are also alcohol and community service programs that must be completed before sentencing. This is what occurs if there is no accident and a blood alcohol level of .13 or lower.

On a second offense within 10 years, with no accident and a reading of .13 or less, the deal usually involves a plea to the charge, a misdemeanor, plus probation of three years, some jail and a revocation of the license for up to a year.

In the case of a second DWI charge within five years and readings of .18 or higher, the plea offer may include a felony. The same is true if there is a child in the car.

The problem with these rigid plea policies is that they do not account for reasonable doubt or mitigating factors, such as the medical problems of defendants or other family issues such as a divorce, death or perhaps the need to avoid jail in order to care for an elderly parent or a special needs child. They also do not account for the cost to taxpayers of jail sentences when, in most cases, alternative sentencing would suffice.

In the case of Kennedy, there was overwhelming evidence of innocence and reasonable doubt, yet prosecutors adhered to rigid plea policies. The American Bar Association Standards for the Prosecution Function and New York's Code of Professional Responsibility require that prosecutors exercise their discretion in the charging function or in some cases decide not to prosecute at all. This is what should have happened in the Kennedy case. But, rigid plea policies prevent prosecutors from deviating from their guidelines.

Pleas bargains also threaten prosecution for misdemeanors or felonies if the plea offer is not accepted. Kennedy could afford to push her luck and take that gamble because she had the ability to hire experienced defense counsel and experts. Yet most defendants are not able to afford such defense and are more at the mercy of prosecutors who rigidly adhere to their guidelines and do not exercise their discretion to stand by the reduced charge or dismiss the case entirely.

This then points to the need for judges to become more pro-active in evaluating the fairness of plea policies and the so-called plea bargains. Where appropriate, it is then a judicial function to reduce the charges, or dismiss them in the interest of justice or outright. Prosecutors will not deviate from their guidelines until judges take a firm stand against their rigid application.